To Err Is Human, But Not Inevitable

Crisis. It is the term that comes to most practitioners’ minds—and, in fact, in most people’s minds—when the term “medical malpractice” is mentioned.

The malpractice crisis was brought to the public’s attention when, in 2003, national news alarms sounded as

thousands of physicians from various specialties closed their practice doors and united to protest skyrocketing medical malpractice insurance premiums. Among their chief complaints were that astronomical premiums were causing some of them to leave certain states and others to close shop altogether.

Physicians called for tort reform in the shape of caps on noneconomic damages as a means of lowering their insurance costs. Though these rallies did not mark the beginning of the most recent medical malpractice crisis, they did bring the issue to the forefront of the national media.

IS THERE TRUTH BEHIND THE MADNESS?

In 2003, many states witnessed insurance premiums rising by more than 25%. For example, internists’ premium rates jumped 30% in Delaware, Idaho, Illinois, and Oklahoma; between 40% and 55% in Connecticut, Missouri, New Jersey, New Mexico, and Tennessee; and an astounding 139% in Virginia.

In dollar amounts, among the highest premiums paid by internists in 2003 were $65,697 in Miami, $50,063 in Detroit, and $41,238 in Chicago. Other specialties received even bigger blows, particularly general surgery, obstetrics, and gynecology. In 2003, general surgeons in the Miami area were paying as much as $226,542 for malpractice insurance coverage, whereas obstetricians and gynecologists were paying close to $250,000.

A main catalyst behind the escalating premium rates was—and continues to be—the litigation landscape of our country. Specifically, an increase in the occurrence of medical malpractice tort actions, coupled with the significant growth of jury awards, directly affect how much physicians must pay in order to retain malpractice insurance.

Indeed, the General Accounting Office confirmed in 2003 that losses on medical liability claims were a primary driver of increases in medical liability insurance premium rates. Focusing on the aesthetic medicine community, one-third of board-certified plastic surgeons face a medical malpractice claim every year. The average jury award in medical malpractice claims have steadily increased, and physicians face large legal fees to defend themselves against these claims.

With the ever-present threat of litigation looming large for physicians throughout the country, it is essential that practitioners take time to reflect on how they can best avoid (or at the very least, manage) common medical errors.

This article examines some of the most common mistakes that plastic surgeons make throughout the patient care process, and provides several straightforward solutions to help the physician address each of these issues.

THE FORMIDABLE FIVE: COMMON MEDICAL ERRORS

While not exhaustive, the following list provides plastic surgeons with a sampling of the mistakes that litigators often encounter when handling medical malpractice claims.

It is important to note that there is often substantial overlap between these groupings of errors; for example, a failure to properly document consent may be partially due to the fact that the physician neglected to engage the patient in a meaningful conversation regarding the procedure.

1) Communication is key

Communication errors and failures in the health care setting often lead to a compromise in patient safety and an increase in medical errors. Breakdowns can occur at two levels.

Unfortunately, neither physicians nor staff typically receive formal communication training, either in the academic setting or in the workplace.

It happens all too often: the rushed physician blurts out a long set of instructions or orders to Nurse A while he or she is engaged in another activity, such as charting patient data. The physician walks away, assuming his message has been delivered, while Nurse A is left befuddled, forced to proceed without adequate guidance.

In addition to obvious implications for patient care, such communication failures can also prove to be a great source of frustration for all concerned.

Litigation on the Rise

There are approximately 125,000 active lawsuits against physicians on any given day—a number almost twice as large as the number of medical students.

The average jury award in medical malpractice cases increased from $347,134 in 1997 to $606,907 in 2004.

The escalation in settlement amounts has mirrored that of jury awards—between 1997 and 2004, the average settlement increased from $212,861 to $311,704.

Physicians face large legal fees to defend themselves against these claims. Even in cases where the claims were dropped or dismissed, costs to defendants averaged $18,774.

In cases that went to trial and the defendant prevailed, the average cost for physicians jumped to $95,559.

Failure to engage in meaningful conversations with the patient can lead to unfavorable outcomes down the road. The most common example of this kind of communication failure occurs during the procurement of informed consent. Many physicians still do not recognize that obtaining consent is a process.

Along the same lines, and of particular importance to plastic surgeons, communication breakdowns can also occur when the physician fails to properly manage the patient’s expectations with respect to the outcome of a particular procedure.

When a result is not exactly what the patient hoped it would be (that is, the patient fails to resemble a Hollywood celebrity after a rhinoplasty), said patient may be more likely to pursue legal action against the physician.

2) Write it down

In any given malpractice action, documentation will be involved, and it may be a contested issue. Health care providers often assume that if a sentinel event was not documented, a jury will accordingly conclude that it did not happen. Unfortunately, this assumption is incorrect. Plaintiff attorneys have mastered the craft of using other circumstantial evidence to persuade a jury that, although undocumented, such an event did happen.

Facing what is essentially a double-edged sword, physicians must also bear in mind that if a “favorable” event goes undocumented, it will be harder to prove that the favorable event occurred.

3) It’s all about process

As the delivery of health care grows more complex, and as more physicians are incorporated into an individual patient’s care plan, procedural errors have become more common. Such errors can occur when a patient is transferred from one facility to another (due to limited capacity, lack of resources, etc) and there is no plan in place for the transition of care.

Similarly, procedural errors can occur when physicians fail to engage in the appropriate follow-up care of their patients.

4) There is such a thing as too much confidence

Although much of the patient safety spotlight has focused on medication errors, two recent studies of malpractice claims revealed that diagnostic errors far outnumber medication errors as a cause of claims lodged (26% versus 12% in one study, and 32% versus 8% in another study).

Physician overconfidence is one of the primary underlying causes of misdiagnosis. In fact, it is not uncommon for physicians to generate hypotheses almost immediately upon hearing a patient’s initial symptom presentation. Even if more exploration is needed, a physician may subconsciously seek information that confirms the initial hypothesis, often without a full exploration of other possibilities. This misguided confidence can in fact lead a physician to breach the usual standard of care for a particular set of presenting symptoms.

5) Medication errors

Even after implementation of The Joint Commission’s “Do Not Use” list, as well as several other lists identifying error-prone abbreviations, medication errors are still a real problem.

In addition to confusing names and unclear abbreviations, there are several other culprits behind medication slip-ups, including incomplete patient information; miscommunication of drug orders; product labeling/packaging mistakes; mistakes in compounding, dispensing, distributing, and administering of drugs; and insufficient patient education and provider monitoring.

HELPFUL TIPS IN MANAGING ERRORS

To avoid misunderstandings and quell frustrations, physicians should always be conscious of the way in which they are communicating with their staff. In addition to allowing time for appropriate follow-up questioning, a procedure should be in place for prescribing/taking orders.

For example, such a procedure might require that all verbal orders be recorded whenever possible and immediately be read back to the prescriber.

In other words, a health care provider receiving a verbal order should read or repeat back the information that the prescribing physician conveys in order to verify the accuracy of what was heard.

To enhance the lines of communication with their patients, physicians should treat obtaining informed consent as a process, beginning with an open, two-way dialogue between physician and patient.

The physician should make a conscious effort to speak in a clear and comprehensible manner, and should set aside an appropriate amount of time for patient questioning.

Finally, to ensure understanding, it is recommended that the physician ask each patient or legal surrogate to recount what he or she has been told during the informed consent discussion.

PATIENT EXPECTATIONS

As mentioned previously, another important aspect of developing the physician-patient relationship involves managing expectations. This is particularly true in the plastic surgery setting. Liability claims can arise from patient dissatisfaction with the result or outcome of a particular procedure. To prevent these kinds of suits, physicians should engage in open, frank discussions with the patient prior to performing the desired procedure.

The physician should provide the patient with a realistic indication of what the results will be, how long the recovery will take, and any potential side effects. Finally, the physician should be sure to document the conversation with the patient, clearly indicating when the interaction occurred and the nature of what was discussed.

If there is ever a doubt, always err on the side of documenting.

What is not documented can often be more damaging that what is. Judges and juries tend to trust written documents over recollection and witness testimony. In addition to properly documenting the most obvious aspects of patient care—informed consent, patient assessments, trends in vital signs, and changes in the patient’s condition—it is also good practice to document any verbal communications with the patient, his or her family, and other health care providers.

Factual information should be as detailed as possible, but at the same time clear and concise. Organization and tidy handwriting are a must. It may sound trite, but jurors can use illegible or careless handwriting to form negative impressions of the author.

Timeliness is another critically important element of documentation. It helps to think of timeliness as a two-pronged question. First, was the information promptly recorded into a permanent source? Second, was the documented information time-specific—that is, did it contain a reference to when the activity or event actually occurred?

Many procedural errors can be avoided by implementing standardized, written protocols. Plastic surgeons should make a habit of developing separate follow-up care protocols for each of the procedures they perform. However, in addition to merely having a protocol on the books, there must also be a method of documenting adherence to the protocol. Thus, as the physician completes the requisite follow-up procedures, he or she should timely record such activity in a permanent source.

Similarly, with respect to transferred patients, the receiving facility or provider should have a plan in place that governs the transition of care.

Specifically, physicians at the receiving facility should be required to perform an initial assessment within a specific amount of time, ensuring that no significant lapse of supervision or monitoring occurs.

Even within an institution, it is essential that changes in a patient’s condition or plan of care be regularly transmitted to other health care providers in a timely and clearly understandable manner.

THE DIAGNOSIS PROCESS

Since most physicians may not realize that overconfidence and subjective bias are likely playing into their diagnosis decisions, it is critical that a more objective standard be in place to guide the physician’s actions.

For example, it is helpful to use automated screening checklists to avoid missing key patient history, physical, and lab data. Queries can be customized based on the type of presenting problem, and can allow for “wiggle room” to take into account individual patient features. Use of an automated checklist results in less reliance on (fallible) human memory and ensures that the doctor will engage in more thorough questioning.

The patient should be involved in every step of the diagnosis process. As diagnosis is often complex and difficult, this needs to be shared with patients in ways to minimize disappointments and surprises. This relates to managing expectations, discussed above.

Physicians should support and encourage patients to take the initiative to question a diagnosis, particularly if the patient is not responding to treatment as initially expected.

Information technology (IT) has progressed to the point where it too can be helpful in aiding the diagnosis process. For example, efficient IT programs can help to streamline documentation (including differential diagnosis) and can conveniently access and display historical patient data. Some programs are even capable of suggesting considerations of medication effects in differential diagnosis, based on linkages to the patient’s medication profile and lab results.

Finally, IT can provide physicians with real-time access to a wealth of medical knowledge resources.

One of the most effective things physicians can do to minimize diagnostic errors is to work together with other physicians in the community to create a feedback system. In this system, upstream feedback would be provided to earlier physicians who may have failed to make a correct diagnosis.

Such a system promotes a culture of safety, accountability, continuous and blame-free learning, and communication among providers.

MEDICATION SOLUTION

Recently, most of the national patient safety efforts have focused on eliminating the use of confusing or similar-sounding abbreviations for medications, and on identifying “high alert” drugs such as chemotherapy agents, anti-coagulants, and anti-thrombotics.

However, the more “common-sense” solutions, which are often the more cost-effective ones, have fallen by the wayside. Thus, it is worth briefly mentioning them here.

First and foremost, physicians should make certain that they have properly ascertained the patient’s known allergies, other medicines they are currently taking, previous diagnoses, and lab results.

In addition to communicating with patients, physicians should also ensure that they are conveying drug orders clearly to other health care providers (including pharmacists). This means that orders should be printed in legible handwriting, with the appropriate delineations between zeroes and decimal points. As a final precaution, the physician should always double check metrics/dosing units.

Methods for labeling, packaging, and storing medications should be standardized and, if at all possible, automated.

Workspaces where medications are prepared should be clean; orderly; well lit; and free of clutter, distraction, and noise.

Physicians should make a habit of dispensing medications in unit-dose, or when appropriate, unit-of-use form, whenever possible.

Gerald C. Canaan II, Esq, is a director at the law firm Hancock, Daniel, Johnson & Nagle, PC, in Richmond, Va. His emphasis is medical and dental malpractice defense and legislative lobbying in the Virginia General Assembly. He can be reached at .

W. Scott Johnson, Esq, is also a director at Hancock, Daniel, Johnson & Nagle, PC. His emphasis is governmental relations at the Virginia General Assembly, representation of health care providers before the Virginia Regulatory Boards, and matters before the State Corporation Commission. He has also served as a medical malpractice litigator in the firm. He can be reached at .

Karah L. Jones is a third-year law student at Washington and Lee University School of Law in Lexington, Va.